Book V. Title IV. Concerning Marriage. (De Nuptiis). Bas. 28.4.25
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Book V. Title IV. Concerning marriage. (De nuptiis). Bas. 28.4.25; Dig. 23.2; Inst. 1.10. 5.4.1. Emperors Severius and Antoninus to Potius. When a dispute arises as to the marriage of a girl, and no agreement is reached between the guardian and mother and relatives as to selection of a future husband, the decision of the president of the province is necessary. Given May 7 (199). 5.4.2. The same Emperors to Taphina. If your father consented to your marriage, it does not matter that he did not subscribed the marriage document. 5.4.3. The same Emperors to Valeria. If a freedman dares to marry his patroness, or the daughter, wife, granddaughter or great-granddaughter of his patron, you may accuse him before a competent judge, who will punish him consonant with the spirit of our age which rightly judges such alliances as odious. November 5 (196). 5.4.4. Emperor Alexander to Perpetuuus. Children marry the concubines of their father, for that is godless and objectionable. Those who violate this law commit the crime of unchastity (stupri).1 April 11 (228). 5.4.5. The same Emperor to Maxima. If, as you say, the father of your former husband, in whose power the latter was, did not oppose your marriage, though he knew of it, you should not fear that he will not acknowledge his grandson. 5.4.6. Emperor Gordion to Valeria. Although the marriage, with the woman’s consent, was contracted in the province contrary to the commands of the emperors (with a provincial official) still if he remains in the same frame of mind after retiring from office, the marriage will be thereby made lawful; and hence, according to the opinion of the learned Paulus, the children conceived and born after the lawful marriage are legitimate. August 21 (239). Note. 1 [Blume] As to this crime se headnote C. 9.9. It was deemed public policy to prohibit a man sent into another province in an administrative capacity from marrying a woman in that province, unless he was already betrothed to her. He was even forbidden to give his consent to the marriage of his son to a girl in the province, although the marriage of his daughter to a man in the province was not forbidden. A marriage entered into a violation of this prohibition was a nullity, although it would become legal, if, as stated in the instant law, the parties consented to continue their marriage after the term of office was up. D. 23.2.38, 57, 63 and 65. See C. 5.2.1 and C. 5.7.1. It may be here mentioned that except in the case of apparitors to the governors, a man could not, ordinarily, occupy an administrative position in his native province. See: C. 1.42.1 note; title 7 of this book; C. 12.56.3. 5.4.7. The same Emperor to Aper. If, as you say, your daughter made a complaint against her husband, and that the marriage was thereupon dissolved, but that she returned to him without your consent, the marriage is not legal in the absence of the consent of her father, in whose power she is; and you are therefore not forbidden to reclaim the dowry, though your daughter does not regret her step. Promulgated October 29 (240). Note. The consent of the father, if living, was ordinarily necessary to a valid marriage on the part of the child, if he had the son in his power, and whether he had his daughter in his power or not, provided she was under 25 years of age. Law 18 of this title. That was true, as noticed, even to the extent that a daughter could not divorce her husband and then go back to him without her father’s consent. The consent, however, might be implied. Law 5 of this title. There were some exceptions, as in case of his insanity. Law 25 of this title; C. 1.4.28), or where he had been absent from home for three years without being heard from, and that time was not required to be awaited if the marriage was with one of good station in life, so that consent would have been given as a matter or course. D. 23.2.10 and 11. See also law 16 of this title. If the grandfather was the man who had the paternal power in the family (see C. 8.46.2) his consent was necessary, the father’s also in case of a son, but not in case of a daughter. D. 23.2.16. 5.4.8. The same Emperor to Romanus. Neither the consent of the curator who has only the management of the property, nor that of the kindred or relatives, is required for marriage (when there is no head of the house), but only the consent of the person where marriage is in question.2 Given February 25 (241). Note. A child under the age of puberty not under paternal power had a guardian (tutor), not ordinarily a curator. A child over the age of puberty not under paternal power had a curator; if there was any property he looked after the property. His consent to a marriage was not required. And since a marriage could not be entered into until the age of puberty, the consent of a guardian was not required, except in case of arrangements for the marriage before the child reached the age of puberty. Law 1 of this title. 2 Blume penciled in this last phrase without striking the original “is to be considered in such case.” Where there was no head of the family, no one’s consent was required to the marriage of a son; but it was different in case of a daughter under the age of 25 years. Law 20 of this title. 5.4.9. Emperor Probius to Fortunatus. If you had a wife at home for the purpose of procreating children with the knowledge of your neighbors or other persons, and a daughter was born of this marriage, the marriage is no less valid nor the daughter any the less legitimate because no documents were drawn as to such marriage or as to the birth of the daughter. Note. The only real essential to the ordinary marriage was the consent of the married people and of the heads of the respective families of the bride and bridegroom. D. 23.2.2. The marriage was, of course, to be manifested by some visible signs. Thus the woman must be delivered into the hands of the man, or at least to his house. D. 23.2.5. The consent, and the cohabitation of the parties, must be to live as husband and wife—as it is frequently stated in what follows, it must be with matrimonial or conjugal inclination (affectio), and not merely to live together in concubinage. Marriage ceremony was not essential, though in the early days doubtless usual. It continued, no doubt, to be frequent, but the many references to the fact that cohabitation with conjugal inclination was alone sufficient for marriage, and the fact that marriage contracts were required in some cases, makes it somewhat doubtful, to what extent marriage ceremonies were in vogue. Law 22 of this title, however, speaks of the presence of friends and law 24 of this title speaks of marriage vows. In other words, marriages were usually public at least and not secret. The giving of a dowry on the part of the wife, and a prenuptial gift on the part of the husband (or for them respectively), while usual (C. 5.3 headnote; C. 5.11 headnote), was not essential. The contrary was true in at least some Oriental countries. Mitteis, R.R.u.V.R. 226, 228; Syrian Law Book, L.93; p. 40. And the emperor Majorian in 458 A.D. attempted to make the giving of a dowry obligatory, but the law proved to be temporary. Nov. Maj. 6. 9. In the Orient, the property rights were carefully regulated by a marriage or dowry contract, except in provisional marriages. C. 5.5.8 note, but that was not ordinarily necessary under the Roman law. Justinian in Nov. 74, c. 4 required them in the case of all titled persons, from senators up, and required of other persons of standing, who did not want to enter into such contracts, to cause a record to be made of the marriage in church—the first evidence of the interposition of the church in marriages. But this requirement was modified by Nov. 117, c. 4, church records were dispensed with, and only persons of illustrious or higher rank were required to enter into a marriage contract. There were two other cases where marriage contracts were required. If a person who lived with a woman as his concubine wanted to make [her] his legal wife, or wanted to make his children legitimate, he was required to execute a dowry document. C. 5.27. So, too, if men of title from senators up, wanted to marry a woman who was a freedwoman or who had been on the estate, marriage contracts were required to be executed. Law 23 of this title, and Nov. 117, c. 6, and Nov. 78, c. 3. All persons, it seems, might have a record made of their marriage before a keeper of public records. C. 2.7.23.4. On the subject of marriage ceremonies in the older and newer times, see “matrimonium” in Smith, Greek and Roman Antiquities.